BILL NUMBER: SB 1425 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 30, 2012
AMENDED IN SENATE APRIL 25, 2012
INTRODUCED BY Senator Negrete McLeod
FEBRUARY 24, 2012
An act to amend Sections 361.5 and Section
388 of the Welfare and Institutions Code, relating to
dependent children , and declaring the urgency thereof, to take
effect immediately .
LEGISLATIVE COUNSEL'S DIGEST
SB 1425, as amended, Negrete McLeod. Juveniles: dependent
children.
Existing law governs proceedings to declare a minor a dependent
child of the court. Following a finding that a child is a dependent
child of the court, existing law requires the court to order
reunification services to the child and his or her parent or parents.
Under existing law, a court is authorized to deny reunification
services if it finds, by clear and convincing evidence, one of
fifteen specified circumstances. Those circumstances include if the
child has been adjudicated a dependent child because of severe sexual
abuse or severe physical harm, as defined, to the child, a sibling,
or half sibling by the parent or guardian, provided that the court
finds that pursuing reunification services with that parent would not
benefit the child.
This bill would instead authorize a court to deny reunification
services in a dependency case if the child has been adjudicated a
dependent child because of severe sexual abuse or severe physical
harm to a child by a parent or guardian and if the court finds that
pursuing reunification services with that parent would not benefit
the child.
Existing law provides that after a child is declared a dependent
child of the court, any parent or other person having an interest in
the child, including the dependent child, may petition the court to
change, modify, or set aside an order in the dependency proceedings
or to terminate the court's jurisdiction. Existing law further
permits any party, including the dependent child, to petition the
court to terminate reunification services before the dependency
review hearing. A court may terminate reunification services under
this provision only after finding by a preponderance of the evidence
that reasonable services have been offered and after finding by clear
and convincing evidence either that a change in circumstances
justifies termination of reunification services or that the parent's
action or inaction makes reunification unlikely.
This bill would require a court to order a hearing on a
petition to modify an order finding that proposed
modification of reunification services, custody, or visitation orders
concerning a child for whom reunification services were not
necessary or an order terminating parental rights only
ordered if the court finds , by a
preponderance of the evidence, that the best interests of
the child would be met by the proposed change. Additionally, this
bill would require a court to modify the an
order finding that reunification services were not necessary
only if the court finds, by clear and convincing evidence, that the
proposed change is in the child's best interests. The bill would
apply the same standards to petitions to modify an order relating to
custody or visitation of the dependent child.
This bill would declare that it is to take effect immediately as
an urgency statute.
Vote: majority 2/3 . Appropriation:
no. Fiscal committee: no. State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 361.5 of the Welfare and
Institutions Code, as amended by Section 1 of Chapter 59 of the
Statutes of 2011, is amended to read:
361.5. (a) Except as provided in subdivision (b), or when the
parent has voluntarily relinquished the child and the relinquishment
has been filed with the State Department of Social Services, or upon
the establishment of an order of guardianship pursuant to Section
360, whenever a child is removed from a parent's or guardian's
custody, the juvenile court shall order the social worker to provide
child welfare services to the child and the child's mother and
statutorily presumed father or guardians. Upon a finding and
declaration of paternity by the juvenile court or proof of a prior
declaration of paternity by any court of competent jurisdiction, the
juvenile court may order services for the child and the biological
father, if the court determines that the services will benefit the
child.
(1) Family reunification services, when provided, shall be
provided as follows:
(A) Except as otherwise provided in subparagraph (C), for a child
who, on the date of initial removal from the physical custody of his
or her parent or guardian, was three years of age or older,
court-ordered services shall be provided beginning with the
dispositional hearing and ending 12 months after the date the child
entered foster care as defined in Section 361.49, unless the child is
returned to the home of the parent or guardian.
(B) For a child who, on the date of initial removal from the
physical custody of his or her parent or guardian, was under three
years of age, court-ordered services shall be provided for a period
of six months from the dispositional hearing as provided in
subdivision (e) of Section 366.21, but no longer than 12 months from
the date the child entered foster care as defined in Section 361.49
unless the child is returned to the home of the parent or guardian.
(C) For the purpose of placing and maintaining a sibling group
together in a permanent home should reunification efforts fail, for a
child in a sibling group whose members were removed from parental
custody at the same time, and in which one member of the sibling
group was under three years of age on the date of initial removal
from the physical custody of his or her parent or guardian,
court-ordered services for some or all of the sibling group may be
limited as set forth in subparagraph (B). For the purposes of this
paragraph, "a sibling group" shall mean two or more children who are
related to each other as full or half siblings.
(2) Any motion to terminate court-ordered reunification services
prior to the hearing set pursuant to subdivision (f) of Section
366.21 for a child described by subparagraph (A) of paragraph (1), or
prior to the hearing set pursuant to subdivision (e) of Section
366.21 for a child described by subparagraph (B) or (C) of paragraph
(1), shall be made pursuant to the requirements set forth in
subdivision (c) of Section 388. A motion to terminate court-ordered
reunification services shall not be required at the hearing set
pursuant to subdivision (e) of Section 366.21 if the court finds by
clear and convincing evidence one of the following:
(A) That the child was removed initially under subdivision (g) of
Section 300 and the whereabouts of the parent are still unknown.
(B) That the parent has failed to contact and visit the child.
(C) That the parent has been convicted of a felony indicating
parental unfitness.
(3) Notwithstanding subparagraphs (A), (B), and (C) of paragraph
(1), court-ordered services may be extended up to a maximum time
period not to exceed 18 months after the date the child was
originally removed from physical custody of his or her parent or
guardian if it can be shown, at the hearing held pursuant to
subdivision (f) of Section 366.21, that the permanent plan for the
child is that he or she will be returned and safely maintained in the
home within the extended time period. The court shall extend the
time period only if it finds that there is a substantial probability
that the child will be returned to the physical custody of his or her
parent or guardian within the extended time period or that
reasonable services have not been provided to the parent or guardian.
In determining whether court-ordered services may be extended, the
court shall consider the special circumstances of an incarcerated or
institutionalized parent or parents, or parent or parents
court-ordered to a residential substance abuse treatment program,
including, but not limited to, barriers to the parent's or guardian's
access to services and ability to maintain contact with his or her
child. The court shall also consider, among other factors, good faith
efforts that the parent or guardian has made to maintain contact
with the child. If the court extends the time period, the court shall
specify the factual basis for its conclusion that there is a
substantial probability that the child will be returned to the
physical custody of his or her parent or guardian within the extended
time period. The court also shall make findings pursuant to
subdivision (a) of Section 366 and subdivision (e) of Section 358.1.
When counseling or other treatment services are ordered, the
parent or guardian shall be ordered to participate in those services,
unless the parent's or guardian's participation is deemed by the
court to be inappropriate or potentially detrimental to the child, or
unless a parent or guardian is incarcerated and the corrections
facility in which he or she is incarcerated does not provide access
to the treatment services ordered by the court. Physical custody of
the child by the parents or guardians during the applicable time
period under subparagraph (A), (B), or (C) of paragraph (1) shall not
serve to interrupt the running of the period. If at the end of the
applicable time period, a child cannot be safely returned to the care
and custody of a parent or guardian without court supervision, but
the child clearly desires contact with the parent or guardian, the
court shall take the child's desire into account in devising a
permanency plan.
In cases where the child was under three years of age on the date
of the initial removal from the physical custody of his or her parent
or guardian or is a member of a sibling group as described in
subparagraph (C) of paragraph (1), the court shall inform the parent
or guardian that the failure of the parent or guardian to participate
regularly in any court-ordered treatment programs or to cooperate or
avail himself or herself of services provided as part of the child
welfare services case plan may result in a termination of efforts to
reunify the family after six months. The court shall inform the
parent or guardian of the factors used in subdivision (e) of Section
366.21 to determine whether to limit services to six months for some
or all members of a sibling group as described in subparagraph (C) of
paragraph (1).
(4) Notwithstanding paragraph (3), court-ordered services may be
extended up to a maximum time period not to exceed 24 months after
the date the child was originally removed from physical custody of
his or her parent or guardian if it is shown, at the hearing held
pursuant to subdivision (b) of Section 366.22, that the permanent
plan for the child is that he or she will be returned and safely
maintained in the home within the extended time period. The court
shall extend the time period only if it finds that it is in the child'
s best interest to have the time period extended and that there is a
substantial probability that the child will be returned to the
physical custody of his or her parent or guardian who is described in
subdivision (b) of Section 366.22 within the extended time period,
or that reasonable services have not been provided to the parent or
guardian. If the court extends the time period, the court shall
specify the factual basis for its conclusion that there is a
substantial probability that the child will be returned to the
physical custody of his or her parent or guardian within the extended
time period. The court also shall make findings pursuant to
subdivision (a) of Section 366 and subdivision (e) of Section 358.1.
When counseling or other treatment services are ordered, the
parent or guardian shall be ordered to participate in those services,
in order for substantial probability to be found. Physical custody
of the child by the parents or guardians during the applicable time
period under subparagraph (A), (B), or (C) of paragraph (1) shall not
serve to interrupt the running of the period. If at the end of the
applicable time period, the child cannot be safely returned to the
care and custody of a parent or guardian without court supervision,
but the child clearly desires contact with the parent or guardian,
the court shall take the child's desire into account in devising a
permanency plan.
Except in cases where, pursuant to subdivision (b), the court does
not order reunification services, the court shall inform the parent
or parents of Section 366.26 and shall specify that the parent's or
parents' parental rights may be terminated.
(b) Reunification services need not be provided to a parent or
guardian described in this subdivision when the court finds, by clear
and convincing evidence, any of the following:
(1) That the whereabouts of the parent or guardian is unknown. A
finding pursuant to this paragraph shall be supported by an affidavit
or by proof that a reasonably diligent search has failed to locate
the parent or guardian. The posting or publication of notices is not
required in that search.
(2) That the parent or guardian is suffering from a mental
disability that is described in Chapter 2 (commencing with Section
7820) of Part 4 of Division 12 of the Family Code and that renders
him or her incapable of utilizing those services.
(3) That the child or a sibling of the child has been previously
adjudicated a dependent pursuant to any subdivision of Section 300 as
a result of physical or sexual abuse, that following that
adjudication the child had been removed from the custody of his or
her parent or guardian pursuant to Section 361, that the child has
been returned to the custody of the parent or guardian from whom the
child had been taken originally, and that the child is being removed
pursuant to Section 361, due to additional physical or sexual abuse.
(4) That the parent or guardian of the child has caused the death
of another child through abuse or neglect.
(5) That the child was brought within the jurisdiction of the
court under subdivision (e) of Section 300 because of the conduct of
that parent or guardian.
(6) That the child has been adjudicated a dependent pursuant to
any subdivision of Section 300 as a result of severe sexual abuse or
the infliction of severe physical harm to a child by a parent or
guardian as defined in this subdivision, and the court makes a
factual finding that it would not benefit the child to pursue
reunification services with the offending parent or guardian.
A finding of severe sexual abuse, for the purposes of this
subdivision, may be based on, but is not limited to, sexual
intercourse, or stimulation involving genital-genital, oral-genital,
anal-genital, or oral-anal contact, whether between the parent or
guardian and a child, or between a child and another person or animal
with the actual or implied consent of the parent or guardian; or the
penetration or manipulation of a child's genital organs or rectum by
any animate or inanimate object for the sexual gratification of the
parent or guardian, or for the sexual gratification of another person
with the actual or implied consent of the parent or guardian.
A finding of the infliction of severe physical harm, for the
purposes of this subdivision, may be based on, but is not limited to,
deliberate and serious injury inflicted to or on a child's body by
an act or omission of the parent or guardian, or of another
individual or animal with the consent of the parent or guardian;
deliberate and torturous confinement of a child in a closed space; or
any other torturous act or omission that would be reasonably
understood to cause serious emotional damage.
(7) That the parent is not receiving reunification services for a
sibling or a half sibling of the child pursuant to paragraph (3),
(5), or (6).
(8) That the child was conceived by means of the commission of an
offense listed in Section 288 or 288.5 of the Penal Code, or by an
act committed outside of this state that, if committed in this state,
would constitute one of those offenses. This paragraph only applies
to the parent who committed the offense or act.
(9) That the child has been found to be a child described in
subdivision (g) of Section 300; that the parent or guardian of the
child willfully abandoned the child, and the court finds that the
abandonment itself constituted a serious danger to the child; or that
the parent or other person having custody of the child voluntarily
surrendered physical custody of the child pursuant to Section 1255.7
of the Health and Safety Code. For the purposes of this paragraph,
"serious danger" means that without the intervention of another
person or agency, the child would have sustained severe or permanent
disability, injury, illness, or death. For purposes of this
paragraph, "willful abandonment" shall not be construed as actions
taken in good faith by the parent without the intent of placing the
child in serious danger.
(10) That the court ordered termination of reunification services
for any siblings or half siblings of the child because the parent or
guardian failed to reunify with the sibling or half sibling after the
sibling or half sibling had been removed from that parent or
guardian pursuant to Section 361 and that parent or guardian is the
same parent or guardian described in subdivision (a) and that,
according to the findings of the court, this parent or guardian has
not subsequently made a reasonable effort to treat the problems that
led to removal of the sibling or half sibling of that child from that
parent or guardian.
(11) That the parental rights of a parent over any sibling or half
sibling of the child had been permanently severed, and this parent
is the same parent described in subdivision (a), and that, according
to the findings of the court, this parent has not subsequently made a
reasonable effort to treat the problems that led to removal of the
sibling or half sibling of that child from the parent.
(12) That the parent or guardian of the child has been convicted
of a violent felony, as defined in subdivision (c) of Section 667.5
of the Penal Code.
(13) That the parent or guardian of the child has a history of
extensive, abusive, and chronic use of drugs or alcohol and has
resisted prior court-ordered treatment for this problem during a
three-year period immediately prior to the filing of the petition
that brought that child to the court's attention, or has failed or
refused to comply with a program of drug or alcohol treatment
described in the case plan required by Section 358.1 on at least two
prior occasions, even though the programs identified were available
and accessible.
(14) That the parent or guardian of the child has advised the
court that he or she is not interested in receiving family
maintenance or family reunification services or having the child
returned to or placed in his or her custody and does not wish to
receive family maintenance or reunification services.
The parent or guardian shall be represented by counsel and shall
execute a waiver of services form to be adopted by the Judicial
Council. The court shall advise the parent or guardian of any right
to services and of the possible consequences of a waiver of services,
including the termination of parental rights and placement of the
child for adoption. The court shall not accept the waiver of services
unless it states on the record its finding that the parent or
guardian has knowingly and intelligently waived the right to
services.
(15) That the parent or guardian has on one or more occasions
willfully abducted the child or child's sibling or half sibling from
his or her placement and refused to disclose the child's or child's
sibling's or half sibling's whereabouts, refused to return physical
custody of the child or child's sibling or half sibling to his or her
placement, or refused to return physical custody of the child or
child's sibling or half sibling to the social worker.
(c) In deciding whether to order reunification in any case in
which this section applies, the court shall hold a dispositional
hearing. The social worker shall prepare a report that discusses
whether reunification services shall be provided. When it is alleged,
pursuant to paragraph (2) of subdivision (b), that the parent is
incapable of utilizing services due to mental disability, the court
shall order reunification services unless competent evidence from
mental health professionals establishes that, even with the provision
of services, the parent is unlikely to be capable of adequately
caring for the child within the time limits specified in subdivision
(a).
The court shall not order reunification for a parent or guardian
described in paragraph (3), (4), (6), (7), (8), (9), (10), (11),
(12), (13), (14), or (15) of subdivision (b) unless the court finds,
by clear and convincing evidence, that reunification is in the best
interest of the child.
In addition, the court shall not order reunification in any
situation described in paragraph (5) of subdivision (b) unless it
finds that, based on competent testimony, those services are likely
to prevent reabuse or continued neglect of the child or that failure
to try reunification will be detrimental to the child because the
child is closely and positively attached to that parent. The social
worker shall investigate the circumstances leading to the removal of
the child and advise the court whether there are circumstances that
indicate that reunification is likely to be successful or
unsuccessful and whether failure to order reunification is likely to
be detrimental to the child.
The failure of the parent to respond to previous services, the
fact that the child was abused while the parent was under the
influence of drugs or alcohol, a past history of violent behavior, or
testimony by a competent professional that the parent's behavior is
unlikely to be changed by services are among the factors indicating
that reunification services are unlikely to be successful. The fact
that a parent or guardian is no longer living with an individual who
severely abused the child may be considered in deciding that
reunification services are likely to be successful, provided that the
court shall consider any pattern of behavior on the part of the
parent that has exposed the child to repeated abuse.
(d) If reunification services are not ordered pursuant to
paragraph (1) of subdivision (b) and the whereabouts of a parent
become known within six months of the out-of-home placement of the
child, the court shall order the social worker to provide family
reunification services in accordance with this subdivision.
(e) (1) If the parent or guardian is incarcerated or
institutionalized, the court shall order reasonable services unless
the court determines, by clear and convincing evidence, those
services would be detrimental to the child. In determining detriment,
the court shall consider the age of the child, the degree of
parent-child bonding, the length of the sentence, the length and
nature of the treatment, the nature of the crime or illness, the
degree of detriment to the child if services are not offered and, for
children 10 years of age or older, the child's attitude toward the
implementation of family reunification services, the likelihood of
the parent's discharge from incarceration or institutionalization
within the reunification time limitations described in subdivision
(a), and any other appropriate factors. In determining the content of
reasonable services, the court shall consider the particular
barriers to an incarcerated or otherwise institutionalized parent's
access to those court-mandated services and ability to maintain
contact with his or her child, and shall document this information in
the child's case plan. Reunification services are subject to the
applicable time limitations imposed in subdivision (a). Services may
include, but shall not be limited to, all of the following:
(A) Maintaining contact between the parent and child through
collect telephone calls.
(B) Transportation services, where appropriate.
(C) Visitation services, where appropriate.
(D) Reasonable services to extended family members or foster
parents providing care for the child if the services are not
detrimental to the child.
An incarcerated parent may be required to attend counseling,
parenting classes, or vocational training programs as part of the
reunification service plan if actual access to these services is
provided. The social worker shall document in the child's case plan
the particular barriers to an incarcerated or institutionalized
parent's access to those court-mandated services and ability to
maintain contact with his or her child.
(2) The presiding judge of the juvenile court of each county may
convene representatives of the county welfare department, the sheriff'
s department, and other appropriate entities for the purpose of
developing and entering into protocols for ensuring the notification,
transportation, and presence of an incarcerated or institutionalized
parent at all court hearings involving proceedings affecting the
child pursuant to Section 2625 of the Penal Code. The county welfare
department shall utilize the prisoner locator system developed by the
Department of Corrections and Rehabilitation to facilitate timely
and effective notice of hearings for incarcerated parents.
(3) Notwithstanding any other provision of law, if the
incarcerated parent is a woman seeking to participate in the
community treatment program operated by the Department of Corrections
and Rehabilitation pursuant to Chapter 4.8 (commencing with Section
1174) of Title 7 of Part 2 of, Chapter 4 (commencing with Section
3410) of Title 2 of Part 3 of, the Penal Code, the court shall
determine whether the parent's participation in a program is in the
child's best interest and whether it is suitable to meet the needs of
the parent and child.
(f) If the court, pursuant to paragraph (2), (3), (4), (5), (6),
(7), (8), (9), (10), (11), (12), (13), (14), or (15) of subdivision
(b) or paragraph (1) of subdivision (e), does not order reunification
services, it shall, at the dispositional hearing, that shall include
a permanency hearing, determine if a hearing under Section 366.26
shall be set in order to determine whether adoption, guardianship, or
long-term foster care, or in the case of an Indian child, in
consultation with the
child's tribe, tribal customary adoption, is the most appropriate
plan for the child, and shall consider in-state and out-of-state
placement options. If the court so determines, it shall conduct the
hearing pursuant to Section 366.26 within 120 days after the
dispositional hearing. However, the court shall not schedule a
hearing so long as the other parent is being provided reunification
services pursuant to subdivision (a). The court may continue to
permit the parent to visit the child unless it finds that visitation
would be detrimental to the child.
(g) (1) Whenever a court orders that a hearing shall be held
pursuant to Section 366.26, including, when, in consultation with the
child's tribe, tribal customary adoption is recommended, it shall
direct the agency supervising the child and the licensed county
adoption agency, or the State Department of Social Services when it
is acting as an adoption agency in counties that are not served by a
county adoption agency, to prepare an assessment that shall include:
(A) Current search efforts for an absent parent or parents and
notification of a noncustodial parent in the manner provided for in
Section 291.
(B) A review of the amount of and nature of any contact between
the child and his or her parents and other members of his or her
extended family since the time of placement. Although the extended
family of each child shall be reviewed on a case-by-case basis,
"extended family" for the purpose of this subparagraph shall include,
but not be limited to, the child's siblings, grandparents, aunts,
and uncles.
(C) An evaluation of the child's medical, developmental,
scholastic, mental, and emotional status.
(D) A preliminary assessment of the eligibility and commitment of
any identified prospective adoptive parent or guardian, including a
prospective tribal customary adoptive parent, particularly the
caretaker, to include a social history, including screening for
criminal records and prior referrals for child abuse or neglect, the
capability to meet the child's needs, and the understanding of the
legal and financial rights and responsibilities of adoption and
guardianship. If a proposed guardian is a relative of the minor, the
assessment shall also consider, but need not be limited to, all of
the factors specified in subdivision (a) of Section 361.3 and in
Section 361.4. As used in this subparagraph, "relative" means an
adult who is related to the minor by blood, adoption, or affinity
within the fifth degree of kinship, including stepparents,
stepsiblings, and all relatives whose status is preceded by the words
"great," "great-great," or "grand," or the spouse of any of those
persons even if the marriage was terminated by death or dissolution.
(E) The relationship of the child to any identified prospective
adoptive parent or guardian, including a prospective tribal customary
parent, the duration and character of the relationship, the degree
of attachment of the child to the prospective relative guardian or
adoptive parent, the relative's or adoptive parent's strong
commitment to caring permanently for the child, the motivation for
seeking adoption or guardianship, a statement from the child
concerning placement and the adoption or guardianship, and whether
the child over 12 years of age has been consulted about the proposed
relative guardianship arrangements, unless the child's age or
physical, emotional, or other condition precludes his or her
meaningful response, and if so, a description of the condition.
(F) An analysis of the likelihood that the child will be adopted
if parental rights are terminated.
(G) In the case of an Indian child, in addition to subparagraphs
(A) to (F), inclusive, an assessment of the likelihood that the child
will be adopted, when, in consultation with the child's tribe, a
customary tribal adoption, as defined in Section 366.24, is
recommended. If tribal customary adoption is recommended, the
assessment shall include an analysis of both of the following:
(i) Whether tribal customary adoption would or would not be
detrimental to the Indian child and the reasons for reaching that
conclusion.
(ii) Whether the Indian child cannot or should not be returned to
the home of the Indian parent or Indian custodian and the reasons for
reaching that conclusion.
(2) (A) A relative caregiver's preference for legal guardianship
over adoption, if it is due to circumstances that do not include an
unwillingness to accept legal or financial responsibility for the
child, shall not constitute the sole basis for recommending removal
of the child from the relative caregiver for purposes of adoptive
placement.
(B) A relative caregiver shall be given information regarding the
permanency options of guardianship and adoption, including the
long-term benefits and consequences of each option, prior to
establishing legal guardianship or pursuing adoption.
(h) If, at any hearing held pursuant to Section 366.26, a
guardianship is established for the minor with an approved relative
caregiver and juvenile court dependency is subsequently dismissed,
the minor shall be eligible for aid under the Kin-GAP Program as
provided for in Article 4.5 (commencing with Section 11360) or
Article 4.7 (commencing with Section 11385) of Chapter 2, as
applicable.
(i) In determining whether reunification services will benefit the
child pursuant to paragraph (6) or (7) of subdivision (b), the court
shall consider any information it deems relevant, including the
following factors:
(1) The specific act or omission comprising the severe sexual
abuse or the severe physical harm inflicted on the child or the child'
s sibling or half sibling, or another child.
(2) The circumstances under which the abuse or harm was inflicted
on the child or the child's sibling or half sibling, or another
child.
(3) The severity of the emotional trauma suffered by the child or
the child's sibling or half sibling, or another sibling.
(4) Any history of abuse of other children by the offending parent
or guardian.
(5) The likelihood that the child may be safely returned to the
care of the offending parent or guardian within 12 months with no
continuing supervision.
(6) Whether or not the child desires to be reunified with the
offending parent or guardian.
(j) When the court determines that reunification services will not
be ordered, it shall order that the child's caregiver receive the
child's birth certificate in accordance with Sections 16010.4 and
16010.5. Additionally, when the court determines that reunification
services will not be ordered, it shall order, when appropriate, that
a child who is 16 years of age or older receive his or her birth
certificate.
(k) The court shall read into the record the basis for a finding
of severe sexual abuse or the infliction of severe physical harm
under paragraph (6) of subdivision (b), and shall also specify the
factual findings used to determine that the provision of
reunification services to the offending parent or guardian would not
benefit the child.
(l) This section shall remain in effect only until January 1,
2014, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2014, deletes or extends
that date.
SEC. 2. Section 361.5 of the Welfare and
Institutions Code, as amended by Section 14 of Chapter 559 of the
Statutes of 2010, is amended to read:
361.5. (a) Except as provided in subdivision (b), or when the
parent has voluntarily relinquished the child and the relinquishment
has been filed with the State Department of Social Services, or upon
the establishment of an order of guardianship pursuant to Section
360, whenever a child is removed from a parent's or guardian's
custody, the juvenile court shall order the social worker to provide
child welfare services to the child and the child's mother and
statutorily presumed father or guardians. Upon a finding and
declaration of paternity by the juvenile court or proof of a prior
declaration of paternity by any court of competent jurisdiction, the
juvenile court may order services for the child and the biological
father, if the court determines that the services will benefit the
child.
(1) Family reunification services, when provided, shall be
provided as follows:
(A) Except as otherwise provided in subparagraph (C), for a child
who, on the date of initial removal from the physical custody of his
or her parent or guardian, was three years of age or older,
court-ordered services shall be provided beginning with the
dispositional hearing and ending 12 months after the date the child
entered foster care as defined in Section 361.49, unless the child is
returned to the home of the parent or guardian.
(B) For a child who, on the date of initial removal from the
physical custody of his or her parent or guardian, was under three
years of age, court-ordered services shall be provided for a period
of six months from the dispositional hearing as provided in
subdivision (e) of Section 366.21, but no longer than 12 months from
the date the child entered foster care as defined in Section 361.49
unless the child is returned to the home of the parent or guardian.
(C) For the purpose of placing and maintaining a sibling group
together in a permanent home should reunification efforts fail, for a
child in a sibling group whose members were removed from parental
custody at the same time, and in which one member of the sibling
group was under three years of age on the date of initial removal
from the physical custody of his or her parent or guardian,
court-ordered services for some or all of the sibling group may be
limited as set forth in subparagraph (B). For the purposes of this
paragraph, "a sibling group" shall mean two or more children who are
related to each other as full or half siblings.
(2) Any motion to terminate court-ordered reunification services
prior to the hearing set pursuant to subdivision (f) of Section
366.21 for a child described by subparagraph (A) of paragraph (1), or
prior to the hearing set pursuant to subdivision (e) of Section
366.21 for a child described by subparagraph (B) or (C) of paragraph
(1), shall be made pursuant to the requirements set forth in
subdivision (c) of Section 388. A motion to terminate court-ordered
reunification services shall not be required at the hearing set
pursuant to subdivision (e) of Section 366.21 if the court finds by
clear and convincing evidence one of the following:
(A) That the child was removed initially under subdivision (g) of
Section 300 and the whereabouts of the parent are still unknown.
(B) That the parent has failed to contact and visit the child.
(C) That the parent has been convicted of a felony indicating
parental unfitness.
(3) Notwithstanding subparagraphs (A), (B), and (C) of paragraph
(1), court-ordered services may be extended up to a maximum time
period not to exceed 18 months after the date the child was
originally removed from physical custody of his or her parent or
guardian if it can be shown, at the hearing held pursuant to
subdivision (f) of Section 366.21, that the permanent plan for the
child is that he or she will be returned and safely maintained in the
home within the extended time period. The court shall extend the
time period only if it finds that there is a substantial probability
that the child will be returned to the physical custody of his or her
parent or guardian within the extended time period or that
reasonable services have not been provided to the parent or guardian.
In determining whether court-ordered services may be extended, the
court shall consider the special circumstances of an incarcerated or
institutionalized parent or parents, or parent or parents
court-ordered to a residential substance abuse treatment program,
including, but not limited to, barriers to the parent's or guardian's
access to services and ability to maintain contact with his or her
child. The court shall also consider, among other factors, good faith
efforts that the parent or guardian has made to maintain contact
with the child. If the court extends the time period, the court shall
specify the factual basis for its conclusion that there is a
substantial probability that the child will be returned to the
physical custody of his or her parent or guardian within the extended
time period. The court also shall make findings pursuant to
subdivision (a) of Section 366 and subdivision (e) of Section 358.1.
When counseling or other treatment services are ordered, the
parent or guardian shall be ordered to participate in those services,
unless the parent's or guardian's participation is deemed by the
court to be inappropriate or potentially detrimental to the child, or
unless a parent or guardian is incarcerated and the corrections
facility in which he or she is incarcerated does not provide access
to the treatment services ordered by the court. Physical custody of
the child by the parents or guardians during the applicable time
period under subparagraph (A), (B), or (C) of paragraph (1) shall not
serve to interrupt the running of the period. If at the end of the
applicable time period, a child cannot be safely returned to the care
and custody of a parent or guardian without court supervision, but
the child clearly desires contact with the parent or guardian, the
court shall take the child's desire into account in devising a
permanency plan.
In cases where the child was under three years of age on the date
of the initial removal from the physical custody of his or her parent
or guardian or is a member of a sibling group as described in
subparagraph (C) of paragraph (1), the court shall inform the parent
or guardian that the failure of the parent or guardian to participate
regularly in any court-ordered treatment programs or to cooperate or
avail himself or herself of services provided as part of the child
welfare services case plan may result in a termination of efforts to
reunify the family after six months. The court shall inform the
parent or guardian of the factors used in subdivision (e) of Section
366.21 to determine whether to limit services to six months for some
or all members of a sibling group as described in subparagraph (C) of
paragraph (1).
(4) Notwithstanding paragraph (3), court-ordered services may be
extended up to a maximum time period not to exceed 24 months after
the date the child was originally removed from physical custody of
his or her parent or guardian if it is shown, at the hearing held
pursuant to subdivision (b) of Section 366.22, that the permanent
plan for the child is that he or she will be returned and safely
maintained in the home within the extended time period. The court
shall extend the time period only if it finds that it is in the child'
s best interest to have the time period extended and that there is a
substantial probability that the child will be returned to the
physical custody of his or her parent or guardian who is described in
subdivision (b) of Section 366.22 within the extended time period,
or that reasonable services have not been provided to the parent or
guardian. If the court extends the time period, the court shall
specify the factual basis for its conclusion that there is a
substantial probability that the child will be returned to the
physical custody of his or her parent or guardian within the extended
time period. The court also shall make findings pursuant to
subdivision (a) of Section 366 and subdivision (e) of Section 358.1.
When counseling or other treatment services are ordered, the
parent or guardian shall be ordered to participate in those services,
in order for substantial probability to be found. Physical custody
of the child by the parents or guardians during the applicable time
period under subparagraph (A), (B), or (C) of paragraph (1) shall not
serve to interrupt the running of the period. If at the end of the
applicable time period, the child cannot be safely returned to the
care and custody of a parent or guardian without court supervision,
but the child clearly desires contact with the parent or guardian,
the court shall take the child's desire into account in devising a
permanency plan.
Except in cases where, pursuant to subdivision (b), the court does
not order reunification services, the court shall inform the parent
or parents of Section 366.26 and shall specify that the parent's or
parents' parental rights may be terminated.
(b) Reunification services need not be provided to a parent or
guardian described in this subdivision when the court finds, by clear
and convincing evidence, any of the following:
(1) That the whereabouts of the parent or guardian is unknown. A
finding pursuant to this paragraph shall be supported by an affidavit
or by proof that a reasonably diligent search has failed to locate
the parent or guardian. The posting or publication of notices is not
required in that search.
(2) That the parent or guardian is suffering from a mental
disability that is described in Chapter 2 (commencing with Section
7820) of Part 4 of Division 12 of the Family Code and that renders
him or her incapable of utilizing those services.
(3) That the child or a sibling of the child has been previously
adjudicated a dependent pursuant to any subdivision of Section 300 as
a result of physical or sexual abuse, that following that
adjudication the child had been removed from the custody of his or
her parent or guardian pursuant to Section 361, that the child has
been returned to the custody of the parent or guardian from whom the
child had been taken originally, and that the child is being removed
pursuant to Section 361, due to additional physical or sexual abuse.
(4) That the parent or guardian of the child has caused the death
of another child through abuse or neglect.
(5) That the child was brought within the jurisdiction of the
court under subdivision (e) of Section 300 because of the conduct of
that parent or guardian.
(6) That the child has been adjudicated a dependent pursuant to
any subdivision of Section 300 as a result of severe sexual abuse or
the infliction of severe physical harm to a child by a parent or
guardian as defined in this subdivision, and the court makes a
factual finding that it would not benefit the child to pursue
reunification services with the offending parent or guardian.
A finding of severe sexual abuse, for the purposes of this
subdivision, may be based on, but is not limited to, sexual
intercourse, or stimulation involving genital-genital, oral-genital,
anal-genital, or oral-anal contact, whether between the parent or
guardian and a child, or between a child and another person or animal
with the actual or implied consent of the parent or guardian; or the
penetration or manipulation of a child's genital organs or rectum by
any animate or inanimate object for the sexual gratification of the
parent or guardian, or for the sexual gratification of another person
with the actual or implied consent of the parent or guardian.
A finding of the infliction of severe physical harm, for the
purposes of this subdivision, may be based on, but is not limited to,
deliberate and serious injury inflicted to or on a child's body by
an act or omission of the parent or guardian, or of another
individual or animal with the consent of the parent or guardian;
deliberate and torturous confinement of a child in a closed space; or
any other torturous act or omission that would be reasonably
understood to cause serious emotional damage.
(7) That the parent is not receiving reunification services for a
sibling or a half sibling of the child pursuant to paragraph (3),
(5), or (6).
(8) That the child was conceived by means of the commission of an
offense listed in Section 288 or 288.5 of the Penal Code, or by an
act committed outside of this state that, if committed in this state,
would constitute one of those offenses. This paragraph only applies
to the parent who committed the offense or act.
(9) That the child has been found to be a child described in
subdivision (g) of Section 300, that the parent or guardian of the
child willfully abandoned the child, and the court finds that the
abandonment itself constituted a serious danger to the child; or that
the parent or other person having custody of the child voluntarily
surrendered physical custody of the child pursuant to Section 1255.7
of the Health and Safety Code. For the purposes of this paragraph,
"serious danger" means that without the intervention of another
person or agency, the child would have sustained severe or permanent
disability, injury, illness, or death. For purposes of this
paragraph, "willful abandonment" shall not be construed as actions
taken in good faith by the parent without the intent of placing the
child in serious danger.
(10) That the court ordered termination of reunification services
for any siblings or half siblings of the child because the parent or
guardian failed to reunify with the sibling or half sibling after the
sibling or half sibling had been removed from that parent or
guardian pursuant to Section 361 and that parent or guardian is the
same parent or guardian described in subdivision (a) and that,
according to the findings of the court, this parent or guardian has
not subsequently made a reasonable effort to treat the problems that
led to removal of the sibling or half sibling of that child from that
parent or guardian.
(11) That the parental rights of a parent over any sibling or half
sibling of the child had been permanently severed, and this parent
is the same parent described in subdivision (a), and that, according
to the findings of the court, this parent has not subsequently made a
reasonable effort to treat the problems that led to removal of the
sibling or half sibling of that child from the parent.
(12) That the parent or guardian of the child has been convicted
of a violent felony, as defined in subdivision (c) of Section 667.5
of the Penal Code.
(13) That the parent or guardian of the child has a history of
extensive, abusive, and chronic use of drugs or alcohol and has
resisted prior court-ordered treatment for this problem during a
three-year period immediately prior to the filing of the petition
that brought that child to the court's attention, or has failed or
refused to comply with a program of drug or alcohol treatment
described in the case plan required by Section 358.1 on at least two
prior occasions, even though the programs identified were available
and accessible.
(14) That the parent or guardian of the child has advised the
court that he or she is not interested in receiving family
maintenance or family reunification services or having the child
returned to or placed in his or her custody and does not wish to
receive family maintenance or reunification services.
The parent or guardian shall be represented by counsel and shall
execute a waiver of services form to be adopted by the Judicial
Council. The court shall advise the parent or
guardian of any right to services and of the
possible consequences of a waiver of services, including the
termination of parental rights and placement of the child for
adoption. The court shall not accept the waiver of services unless it
states on the record its finding that the parent or guardian has
knowingly and intelligently waived the right to services.
(15) That the parent or guardian has on one or more occasions
willfully abducted the child or child's sibling or half sibling from
his or her placement and refused to disclose the child's or child's
sibling's or half sibling's whereabouts, refused to return physical
custody of the child or child's sibling or half sibling to his or her
placement, or refused to return physical custody of the child or
child's sibling or half sibling to the social worker.
(c) In deciding whether to order reunification in any case in
which this section applies, the court shall hold a dispositional
hearing. The social worker shall prepare a report that discusses
whether reunification services shall be provided. When it is alleged,
pursuant to paragraph (2) of subdivision (b), that the parent is
incapable of utilizing services due to mental disability, the court
shall order reunification services unless competent evidence from
mental health professionals establishes that, even with the provision
of services, the parent is unlikely to be capable of adequately
caring for the child within the time limits specified in subdivision
(a).
The court shall not order reunification for a parent or guardian
described in paragraph (3), (4), (6), (7), (8), (9), (10), (11),
(12), (13), (14), or (15) of subdivision (b) unless the court finds,
by clear and convincing evidence, that reunification is in the best
interest of the child.
In addition, the court shall not order reunification in any
situation described in paragraph (5) of subdivision (b) unless it
finds that, based on competent testimony, those services are likely
to prevent reabuse or continued neglect of the child or that failure
to try reunification will be detrimental to the child because the
child is closely and positively attached to that parent. The social
worker shall investigate the circumstances leading to the removal of
the child and advise the court whether there are circumstances that
indicate that reunification is likely to be successful or
unsuccessful and whether failure to order reunification is likely to
be detrimental to the child.
The failure of the parent to respond to previous services, the
fact that the child was abused while the parent was under the
influence of drugs or alcohol, a past history of violent behavior, or
testimony by a competent professional that the parent's behavior is
unlikely to be changed by services are among the factors indicating
that reunification services are unlikely to be successful. The fact
that a parent or guardian is no longer living with an individual who
severely abused the child may be considered in deciding that
reunification services are likely to be successful, provided that the
court shall consider any pattern of behavior on the part of the
parent that has exposed the child to repeated abuse.
(d) If reunification services are not ordered pursuant to
paragraph (1) of subdivision (b) and the whereabouts of a parent
become known within six months of the out-of-home placement of the
child, the court shall order the social worker to provide family
reunification services in accordance with this subdivision.
(e) (1) If the parent or guardian is incarcerated or
institutionalized, the court shall order reasonable services unless
the court determines, by clear and convincing evidence, those
services would be detrimental to the child. In determining detriment,
the court shall consider the age of the child, the degree of
parent-child bonding, the length of the sentence, the length and
nature of the treatment, the nature of the crime or illness, the
degree of detriment to the child if services are not offered and, for
children 10 years of age or older, the child's attitude toward the
implementation of family reunification services, the likelihood of
the parent's discharge from incarceration or institutionalization
within the reunification time limitations described in subdivision
(a), and any other appropriate factors. In determining the content of
reasonable services, the court shall consider the particular
barriers to an incarcerated or otherwise institutionalized parent's
access to those court-mandated services and ability to maintain
contact with his or her child, and shall document this information in
the child's case plan. Reunification services are subject to the
applicable time limitations imposed in subdivision (a). Services may
include, but shall not be limited to, all of the following:
(A) Maintaining contact between the parent and child through
collect telephone calls.
(B) Transportation services, where appropriate.
(C) Visitation services, where appropriate.
(D) Reasonable services to extended family members or foster
parents providing care for the child if the services are not
detrimental to the child.
An incarcerated parent may be required to attend counseling,
parenting classes, or vocational training programs as part of the
reunification service plan if actual access to these services is
provided. The social worker shall document in the child's case plan
the particular barriers to an incarcerated or institutionalized
parent's access to those court-mandated services and ability to
maintain contact with his or her child.
(2) The presiding judge of the juvenile court of each county may
convene representatives of the county welfare department, the sheriff'
s department, and other appropriate entities for the purpose of
developing and entering into protocols for ensuring the notification,
transportation, and presence of an incarcerated or institutionalized
parent at all court hearings involving proceedings affecting the
child pursuant to Section 2625 of the Penal Code. The county welfare
department shall utilize the prisoner locator system developed by the
Department of Corrections and Rehabilitation to facilitate timely
and effective notice of hearings for incarcerated parents.
(3) Notwithstanding any other provision of law, if the
incarcerated parent is a woman seeking to participate in the
community treatment program operated by the Department of Corrections
and Rehabilitation pursuant to Chapter 4.8 (commencing with Section
1174) of Title 7 of Part 2 of, Chapter 4 (commencing with Section
3410) of Title 2 of Part 3 of, the Penal Code, the court shall
determine whether the parent's participation in a program is in the
child's best interest and whether it is suitable to meet the needs of
the parent and child.
(f) If the court, pursuant to paragraph (2), (3), (4), (5), (6),
(7), (8), (9), (10), (11), (12), (13), (14), or (15) of subdivision
(b) or paragraph (1) of subdivision (e), does not order reunification
services, it shall, at the dispositional hearing, that shall include
a permanency hearing, determine if a hearing under Section 366.26
shall be set in order to determine whether adoption, guardianship, or
long-term foster care is the most appropriate plan for the child,
and shall consider in-state and out-of-state placement options. If
the court so determines, it shall conduct the hearing pursuant to
Section 366.26 within 120 days after the dispositional hearing.
However, the court shall not schedule a hearing so long as the other
parent is being provided reunification services pursuant to
subdivision (a). The court may continue to permit the parent to visit
the child unless it finds that visitation would be detrimental to
the child.
(g) (1) Whenever a court orders that a hearing shall be held
pursuant to Section 366.26, it shall direct the agency supervising
the child and the licensed county adoption agency, or the State
Department of Social Services when it is acting as an adoption agency
in counties that are not served by a county adoption agency, to
prepare an assessment that shall include:
(A) Current search efforts for an absent parent or parents and
notification of a noncustodial parent in the manner provided for in
Section 291.
(B) A review of the amount of and nature of any contact between
the child and his or her parents and other members of his or her
extended family since the time of placement. Although the extended
family of each child shall be reviewed on a case-by-case basis,
"extended family" for the purpose of this subparagraph shall include,
but not be limited to, the child's siblings, grandparents, aunts,
and uncles.
(C) An evaluation of the child's medical, developmental,
scholastic, mental, and emotional status.
(D) A preliminary assessment of the eligibility and commitment of
any identified prospective adoptive parent or guardian, particularly
the caretaker, to include a social history, including screening for
criminal records and prior referrals for child abuse or neglect, the
capability to meet the child's needs, and the understanding of the
legal and financial rights and responsibilities of adoption and
guardianship. If a proposed guardian is a relative of the minor, the
assessment shall also consider, but need not be limited to, all of
the factors specified in subdivision (a) of Section 361.3 and in
Section 361.4. As used in this subparagraph, "relative" means an
adult who is related to the minor by blood, adoption, or affinity
within the fifth degree of kinship, including stepparents,
stepsiblings, and all relatives whose status is preceded by the words
"great," "great-great," or "grand," or the spouse of any of those
persons even if the marriage was terminated by death or dissolution.
(E) The relationship of the child to any identified prospective
adoptive parent or guardian, the duration and character of the
relationship, the degree of attachment of the child to the
prospective relative guardian or adoptive parent, the relative's or
adoptive parent's strong commitment to caring permanently for the
child, the motivation for seeking adoption or guardianship, a
statement from the child concerning placement and the adoption or
guardianship, and whether the child over 12 years of age has been
consulted about the proposed relative guardianship arrangements
unless the child's age or physical, emotional, or other condition
precludes his or her meaningful response, and if so, a description of
the condition.
(F) An analysis of the likelihood that the child will be adopted
if parental rights are terminated.
(2) (A) A relative caregiver's preference for legal guardianship
over adoption, if it is due to circumstances that do not include an
unwillingness to accept legal or financial responsibility for the
child, shall not constitute the sole basis for recommending removal
of the child from the relative caregiver for purposes of adoptive
placement.
(B) A relative caregiver shall be given information regarding the
permanency options of guardianship and adoption, including the
long-term benefits and consequences of each option, prior to
establishing legal guardianship or pursuing adoption.
(h) If, at any hearing held pursuant to Section 366.26, a
guardianship is established for the minor with an approved relative
caregiver and juvenile court dependency is subsequently dismissed,
the minor shall be eligible for aid under the Kin-GAP Program as
provided for in Article 4.5 (commencing with Section 11360) or
Article 4.7 (commencing with Section 11385) of Chapter 2, as
applicable.
(i) In determining whether reunification services will benefit the
child pursuant to paragraph (6) or (7) of subdivision (b), the court
shall consider any information it deems relevant, including the
following factors:
(1) The specific act or omission comprising the severe sexual
abuse or the severe physical harm inflicted on the child or the child'
s sibling or half sibling, or another child.
(2) The circumstances under which the abuse or harm was inflicted
on the child or the child's sibling or half sibling, or another
child.
(3) The severity of the emotional trauma suffered by the child or
the child's sibling or half sibling, or another child.
(4) Any history of abuse of other children by the offending parent
or guardian.
(5) The likelihood that the child may be safely returned to the
care of the offending parent or guardian within 12 months with no
continuing supervision.
(6) Whether or not the child desires to be reunified with the
offending parent or guardian.
(j) The court shall read into the record the basis for a finding
of severe sexual abuse or the infliction of severe physical harm
under paragraph (6) of subdivision (b), and shall also specify the
factual findings used to determine that the provision of
reunification services to the offending parent or guardian would not
benefit the child.
(k) This section shall become operative on January 1, 2014.
SEC. 3. SECTION 1. Section 388 of
the Welfare and Institutions Code is amended to read:
388. (a) (1) Any parent or other person having an interest in a
child who is a dependent child of the juvenile court or the child
himself or herself through a properly appointed guardian may, upon
grounds of change of circumstance or new evidence, petition the court
in the same action in which the child was found to be a dependent
child of the juvenile court or in which a guardianship was ordered
pursuant to Section 360 for a hearing to change, modify, or set aside
any order of court previously made or to terminate the jurisdiction
of the court. The petition shall be verified and, if made by a person
other than the child, shall state the petitioner's relationship to
or interest in the child and shall set forth in concise language any
change of circumstance or new evidence that is alleged to require the
change of order or termination of jurisdiction.
(2) When any party, including a child who is a dependent of the
juvenile court, petitions the court, prior to the hearing set
pursuant to Section 366.26 or prior to an order terminating parental
rights, to modify the order that reunification services were not
needed pursuant to paragraphs (4), (5), and (6) of subdivision (b) of
Section 361.5, or to modify any orders related to custody or
visitation of the child, the court shall order a hearing on
the petition only if the court finds by a preponderance of the
evidence that the best interests of the child will be met by the
proposed change or order. At that hearing, the subject
child, and the court orders a hearing pursuant to subdivision (d),
the court shall modify the order that reunification services
were not needed pursuant to paragraphs (4), (5), and (6) of
subdivision (b) of Section 361.5, or any orders related to the
custody or visitation of the child for whom reunification
services were not ordered pursuant to paragraphs (4), (5), and (6) of
subdivision (b) of Section 361.5 , only if the court finds by
clear and convincing evidence that the proposed change is in the best
interests of the child.
(b) Any person, including a child who is a dependent of the
juvenile court, may petition the court to assert a relationship as a
sibling related by blood, adoption, or affinity through a common
legal or biological parent to a child who is, or is the subject of a
petition for adjudication as, a dependent of the juvenile court, and
may request visitation with the dependent child, placement with or
near the dependent child, or consideration when determining or
implementing a case plan or permanent plan for the dependent child or
make any other request for an order which may be shown to be in the
best interest of the dependent child. The court may appoint a
guardian ad litem to file the petition for the dependent child
asserting the sibling relationship if the court determines that the
appointment is necessary for the best interests of the dependent
child. The petition shall be verified and shall set forth the
following:
(1) Through which parent he or she is related to the dependent
child.
(2) Whether he or she is related to the dependent child by blood,
adoption, or affinity.
(3) The request or order that the petitioner is seeking.
(4) Why that request or order is in the best interest of the
dependent child.
(c) (1) Any party, including a child who is a dependent of the
juvenile court, may petition the court, prior to the hearing set
pursuant to subdivision (f) of Section 366.21 for a child described
by subparagraph (A) of paragraph (1) of subdivision (a) of Section
361.5, or prior to the hearing set pursuant to subdivision (e) of
Section 366.21 for a child described by subparagraph (B) or (C) of
paragraph (1) of subdivision (a) of Section 361.5, to terminate
court-ordered reunification services provided under subdivision (a)
of Section 361.5 only if one of the following conditions exists:
(A) It appears that a change of circumstance or new evidence
exists that satisfies a condition set forth in subdivision (b) or (e)
of Section 361.5 justifying termination of court-ordered
reunification services.
(B) The action or inaction of the parent or guardian creates a
substantial likelihood that reunification will not occur, including,
but not limited to, the parent or guardian's failure to visit the
child, or the failure of the parent or guardian to participate
regularly and make substantive progress in a court-ordered treatment
plan.
(2) In determining whether the parent or guardian has failed to
visit the child or participate regularly or make progress in the
treatment plan, the court shall consider factors including, but not
limited to, the parent or guardian's incarceration,
institutionalization, or participation in a court-ordered residential
substance abuse treatment program.
(3) The court shall terminate reunification services during the
above-described time periods only upon a finding by a preponderance
of evidence that reasonable services have been offered or provided,
and upon a finding of clear and convincing evidence that one of the
conditions in subparagraph (A) or (B) of paragraph (1) exists.
(4) If the court terminates reunification services, it shall order
that a hearing pursuant to Section 366.26 be held within 120 days.
(d) If it appears that the best interests of the child may be
promoted by the proposed change of order, modification of
reunification services, custody, or visitation orders concerning a
child for whom reunification services were not ordered pursuant to
paragraphs (4), (5), and (6) of subdivision (b) of Section 361.5,
recognition of a sibling relationship, termination of
jurisdiction, or clear and convincing evidence supports revocation or
termination of court-ordered reunification services, the court shall
order that a hearing be held and shall give prior notice, or cause
prior notice to be given, to the persons and by the means prescribed
by Section 386, and, in those instances in which the means of giving
notice is not prescribed by those sections, then by means the court
prescribes.
(e) (1) On and after January 1, 2012, a nonminor who attained 18
years of age while subject to an order for foster care placement and,
commencing January 1, 2012, who has not attained 19 years of age,
or, commencing January 1, 2013, 20 years of age, or, commencing
January 1, 2014, 21 years of age, for whom the court has dismissed
dependency jurisdiction pursuant to Section 391, or delinquency
jurisdiction pursuant to Section 607.2 or transition jurisdiction
pursuant to Section 452, but has retained general jurisdiction under
subdivision (b) of Section 303, or the county child welfare services,
probation department, or tribal placing agency on behalf of the
nonminor, may petition the court in the same action in which the
child was found to be a dependent or delinquent child of the juvenile
court, for a hearing to resume the dependency jurisdiction over a
former dependent or to assume or resume transition jurisdiction over
a former delinquent ward pursuant to Section 450. The petition shall
be filed within the period that the nonminor is of the age described
in this paragraph. If the nonminor has completed the voluntary
reentry agreement, as described in subdivision (z) of Section 11400,
with the placing agency, the agency shall file the petition on behalf
of the nonminor within 15 judicial days of the date the agreement
was signed unless the nonminor elects to file the petition at an
earlier date.
(2) (A) The petition to resume jurisdiction may be filed in the
juvenile court that retains general jurisdiction under subdivision
(b) of Section 303, or the petition may be submitted to the juvenile
court in the county where the youth resides and forwarded to the
juvenile court that retained general jurisdiction and filed with that
court. The juvenile court having general jurisdiction under Section
303 shall receive the petition from the court where the petition was
submitted within five court days of its submission, if the petition
is filed in the county of residence. The juvenile court that retained
general jurisdiction shall order that a hearing be held within 15
judicial days of the date the petition was filed if there is a prima
facie showing that the nonminor satisfies the following criteria:
(i) He or she was previously under juvenile court jurisdiction,
subject to an order for foster care placement when he or she attained
18 years of age, and has not attained the age limits described in
paragraph (1).
(ii) He or she intends to satisfy at least one of the conditions
set forth in paragraphs (1) to (5), inclusive, of subdivision (b) of
Section 11403.
(iii) He or she wants assistance either in maintaining or securing
appropriate supervised placement, or is in need of immediate
placement and agrees to supervised placement pursuant to the
voluntary reentry agreement as described in subdivision (z) of
Section 11400.
(B) Upon ordering a hearing, the court shall give prior notice,
or cause prior notice to be given, to the persons and by the means
prescribed by Section 386, except that notice to parents or former
guardians shall not be provided unless the nonminor requests, in
writing on the face of the petition, notice to the parents or former
guardians.
(3) The Judicial Council, by January 1, 2012, shall adopt rules of
court to allow for telephonic appearances by nonminor former
dependents or delinquents in these proceedings, and for telephonic
appearances by nonminor dependents in any proceeding in which the
nonminor dependent is a party, and he or she declines to appear and
elects a telephonic appearance.
(4) Prior to the hearing on a petition to resume dependency
jurisdiction or to assume or resume transition jurisdiction, the
court shall order the county child welfare or probation department or
Indian tribe that has entered into an agreement pursuant to Section
10553.1 to prepare a report for the court addressing whether the
nonminor intends to satisfy at least one of the criteria set forth in
subdivision (b) of Section 11403. When the recommendation is for the
nonminor dependent to be placed in a setting where minor dependents
also reside, the results of a background check of the petitioning
nonminor conducted pursuant to Section 16504.5, used by the placing
agency to determine appropriate placement options for the nonminor.
The existence of a criminal conviction is not a bar to eligibility
for reentry or resumption of dependency jurisdiction or the
assumption or resumption of transition jurisdiction over a nonminor.
(5) (A) The court shall resume dependency jurisdiction over a
former dependent or assume or resume transition jurisdiction over a
former delinquent ward pursuant to Section 450, and order that the
nonminor's placement and care be under the responsibility of the
county child welfare services department, the probation department,
or tribe, if the court finds all of the following:
(i) The nonminor was previously under juvenile court jurisdiction
subject to an order for foster care placement when he or she attained
18 years of age.
(ii) The nonminor has not attained the age limits described in
paragraph (1).
(iii) Reentry and remaining in foster care are in the nonminor's
best interests.
(iv) The nonminor intends to satisfy, and agrees to satisfy, at
least one of the criteria set forth in paragraphs (1) to (5),
inclusive, of subdivision (b) of Section 11403, or demonstrates his
or her agreement to satisfy the criteria by signing the voluntary
reentry agreement as described in subdivision (z) of Section 11400.
(B) The agency made responsible for the nonminor's
placement and care pursuant to subparagraph (A) shall prepare a new
transitional independent living case plan and submit it to the court
within 60 days of the resumption of dependency jurisdiction or
assumption or resumption of transition jurisdiction.
(C) In no event shall the court grant a continuance that would
cause the hearing to resume dependency jurisdiction or to assume or
resume transition jurisdiction to be completed more than 120 days
after the date the petition was submitted.
SEC. 2. This act is an urgency statute necessary
for the immediate preservation of the public peace, health, or safety
within the meaning of Article IV of the Constitution and shall go
into immediate effect. The facts constituting the necessity are:
In order to ensure that parents of children who are in dependency
proceedings due to a parent's sexual abuse or severe physical harm to
that child or siblings of that child are only given reunification
services in modification proceedings in limited circumstances, it is
necessary for this act to take effect immediately.